EXHIBIT 10.16
GUARANTY AND SURETYSHIP AGREEMENT (MELLON BANK LOGO)
With Power to Confess Judgement
--------------------------------------------------------------------------------
1. To induce Mellon Bank, N.A. ("Bank") to transact business and to make credit
accommodations with SUPERIOR WELL SERVICES, LTD. ("Debtor"), Undersigned, as
defined below, does hereby guarantee, absolutely and unconditionally, and does
hereby become surety for the full and timely payment of the principal of, and
interest on, all obligations, debts, dues, instruments, liabilities, advances,
judgements, damages, losses, claims, contracts, and choses in action, of
whatever nature and however arising, past, present or future, and any and all
extensions and renewals thereof in whole or in part, whether direct or indirect,
absolute or contingent, voluntary or involuntary, now due or to become due, and
whether owed to Bank from Debtor as drawer, maker, endorser, assignor,
guarantor, surety, or otherwise whatsoever ("Obligations"), except this Guaranty
and Suretyship Agreement ("Agreement") shall not extend to any obligation of
Debtor which is defined as "consumer credit" by Federal Reserve Board Regulation
Z, 12 C.F.R. Section 226.1 et seq., and is not exempted from the application of
that Regulation. Undersigned will reimburse Bank or any subsequent holder
thereof for all expenses incurred, and not reimbursed by Debtor, in collection
of any Obligations. If this Agreement is referred for collection to an
attorney, Undersigned will pay an attorney's fee equal to the lesser of (a) 20%
of the amount value or $500, whichever is greater, or (b) the maximum amount
permitted by law, and costs of legal proceedings. The Undersigned's Obligations
hereunder shall be payable at Bank's offices at Pittsburgh, Pennsylvania.
2. This is a guaranty of payment and not merely of collection in the event of
any default by Debtor in payment or otherwise on any Obligations, Undersigned
will pay all or any portion of Obligations due or thereafter becoming due,
whether by acceleration or otherwise, without defalcation or offset of any kind,
without Bank first being required to make demand upon Debtor or pursue any of
its rights against Debtor, or against any other person, including other
guarantors; and without being required to liquidate or realize on any collateral
security. In any right of action accruing to Bank, Bank may elect to proceed
against (a) Undersigned together with Debtor; (b) Undersigned and Debtor
individually; or (c) Undersigned only without having first commenced any action
against Debtor.
3. Undersigned hereby grants to Bank a security interest in, lien upon, and
right of setoff against, all deposit accounts, credits, securities, moneys or
other personal property of Undersigned which may at any time be in the
possession of, delivered to or owed by Bank, including any proceeds or returned
or unearned premiums of insurance, and the proceeds of all the foregoing
property.
4. Bank, without notice to Undersigned, may deal with Obligations and any
collateral security therefor in such manner as Bank may deem advisable and may
renew or extend Obligations or any part thereof; may accept partial payment, or
settle, release, or compromise the same; may demand additional collateral
security for Obligations, and substitute or release the same; and may compromise
or settle with or release and discharge from liability any of Undersigned or any
other guarantor of Obligations, or any other person liable to Bank for all or
part of the Obligations; all without impairing the liability of Undersigned
hereunder.
5. Undersigned hereby unconditionally waives: (a) notice of acceptance of this
Agreement by Bank and any notice of the incurring by Debtor of any Obligations;
(b) presentment for payment, notice of nonpayment, demand, protest, notice of
protest and notice of dishonor or default to any party including Undersigned;
(c) all other notices to which Undersigned may be entitled but which may legally
be waived; (d) demand for payment as a condition of liability under this
Agreement; (e) any disability of Debtor or defense available to Debtor,
including absence or cessation of Debtor's liability for any reason whatsoever;
(f) any defense or circumstance which might otherwise constitute a legal or
equitable discharge of a guarantor or surety; (g) all rights under any state or
federal statute dealing with or affecting the rights of creditors; and (h) until
Obligations are paid in full, any right to subrogation or realization on any of
Debtor's property, including participation in the marshalling of Debtor's
assets.
6. This Guaranty and Suretyship Agreement and Undersigned's payment obligations
hereunder shall continue to be effective or be reinstated, as the case may be,
if at any time payment of any of Obligations is rescinded or must otherwise be
restored or returned by Bank, all as though such payment had not been made,
Bank's good faith determination as to whether a payment must be restored or
returned shall be binding on Undersigned.
7. Until Obligations are paid in full, Undersigned hereby unconditionally
subordinates to Obligations all present and future debts, liabilities, or
obligations of Debtor to Undersigned, and all amounts due under such debts,
liabilities, or obligations shall be collected and paid over to Bank on account
of Obligations. Undersigned, at Bank's request, shall execute a subordination
agreement in favor of Bank to further evidence and support the purpose of this
Paragraph 7.
8. Undersigned warrants to Bank: (a) no other agreement, representation or
special condition exists between Undersigned and Bank regarding the liability of
Undersigned hereunder; nor does any understanding exist between Undersigned and
Bank that the Obligations of Undersigned hereunder are or will be other that as
set out herein; and (b) as of the date hereof Undersigned has no defense
whatsoever to any action or proceeding that may be brought to enforce this
Agreement.
9. Undersigned will provide annual financial information to Bank within 120 days
of fiscal year end including balance sheets and income statements, in form and
content satisfactory to Bank and reviewed by an independent certified public
accountant not unsatisfactory to Bank.
10. No failure or delay on the part of Bank in exercising any right, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of
Page 1 of 2
any right, power or privilege hereunder preclude any other or further exercise
thereof, or the exercise of any other right, power or privilege. Failure by
Bank to insist upon strict performance hereof shall not constitute a
relinquishment of its right to demand strict performance at another time.
Receipt by Bank of any payment by any person on Obligations, with knowledge of a
default on any of Obligations of a breach of this Agreement, or both, shall not
be construed as a waiver of the default or breach.
11. THIS AGREEMENT IS A CONTINUING GUARANTY AND SHALL CONTINUE IN FORCE UNTIL
RECEIPT BY BANK OF WRITTEN NOTICE OF REVOCATION BY UNDERSIGNED OR RECEIPT OF
NOTICE OF UNDERSIGNED'S DEATH; AND IN EITHER OF SUCH EVENTS THIS AGREEMENT SHALL
CONTINUE IN EFFECT NEVERTHELESS UNTIL ALL EXISTING OBLIGATIONS OF DEBTOR TO BANK
ARE PAID; IT BEING CONTEMPLATED THAT DEBTOR MAY CREATE OR INCUR OBLIGATIONS,
REPAY AND SUBSEQUENTLY CREATE OR INCUR OBLIGATIONS WITHOUT NOTICE TO
UNDERSIGNED; AND UNDERSIGNED, BY PERMITTING THIS AGREEMENT TO REMAIN IN EFFECT,
SHALL BE BOUND.
12. This Agreement is freely assignable and transferable by Bank; however, the
duties and obligations of Undersigned may not be delegated or transferred by
Undersigned without the written consent of Bank. The rights and privileges of
Bank shall inure to the benefit of its successors and assigns, and the duties
and obligations of Undersigned shall bind Undersigned's heirs, personal
representatives, successors and assigns.
13. If any provision hereof shall for any reason be held invalid or
unenforceable, no other provision shall be affected thereby, and this Agreement
shall be construed as if the invalid or unenforceable provision had never been a
part of it.
14. As used herein, "Undersigned" refers individually and collectively to all
signers of this Agreement, including in the case of any partnership all general
partners of such partnership individually and collectively, whether or not such
partners sign below. Undersigned shall each be jointly and severally bound by
the terms hereof, and each general partner of any partnership executing this
Agreement shall be bound hereby both in such general partner's individual and
partnership capacities.
15. This Agreement shall in all respects be governed by the laws of the state
where Undersigned's Obligations hereunder are payable as set forth herein.
16. UNDERSIGNED HEREBY EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF
RECORD TO APPEAR FOR UNDERSIGNED AND TO CONFESS JUDGMENT AS OFTEN AS NECESSARY
AGAINST UNDERSIGNED IN FAVOR OF THE HOLDER HEREOF, AS OF ANY TERM, FOR THE ABOVE
DESCRIBED OBLIGATIONS PLUS INTEREST DUE, TOGETHER WITH COSTS OF SUIT AND AN
ATTORNEY'S COMMISSION EQUAL TO THE LESSER OF (A) 20% OF ALL SUCH OBLIGATIONS OR
$500, WHICHEVER IS GREATER, OR (B) THE MAXIMUM AMOUNT PERMITTED BY LAW, WITH
RELEASE OF ALL ERRORS, UNDERSIGNED WAIVES ALL LAWS EXEMPTING REAL OR PERSONAL
PROPERTY FROM EXECUTION.
SIGNATURES
Witness the due execution hereof intending to be legally bound this 22nd day of August 1997
-------- --------------------
--------------------------------------------------------------------------------------------------------
Witness: Individual:
x x (Seal)
--------------------------------------------- ------------------------------------------------------
Address
--------------------------------------------- ------------------------------------------------------
Witness: Individual:
x x (Seal)
--------------------------------------------- ------------------------------------------------------
Address
------------------------------------------------------
Corporation or Other Entity
ALLEGHENY MINERAL CORPORATION
--------------------------------------------- ------------------------------------------------------
Attest By: (Signature and Title)
x /s/ XXXX X. XXXXXX x (Seal)
--------------------------------------------- ------------------------------------------------------
Secretary X. X. Xxxxxx, President
By: (Signature and Title)
x X. X. XXXXXX (Seal)
------------------------------------------------------
Business Address
(Corporate Seal)
X.X. Xxx 0000, Xxxxxxxxxx, XX 00000
------------------------------------------------------
Page 2 of 2
